One of the most common types of lasting conditions that results from a birth injury is cerebral palsy. The signs of cerebral palsy include brain injury or physical malformations, both of which may have occurred as a result of a birth injury. Cerebral palsy is commonly caused by a lack of oxygen during birth.
The lasting symptoms of cerebral palsy can range from loss of muscle tone or muscle control, loss of reflexes or the ability to balance, delayed mental development, loss of senses such as sight or hearing, the inability to walk or talk, and the inability to control the facial muscles necessary to eat unassisted.
For children who suffered from a birth injury in a North Carolina hospital or health care facility, that led to a cerebral palsy diagnosis, or any other serious lasting condition, a lawsuit can be brought against the attending health care professionals. This lawsuit will have to prove that a case of malpractice occurred. To do that, there are several laws set in place by North Carolina that a plaintiff will need to be aware of.
Statute of Limitations
In general, a birth injury lawsuit cannot be filed after three years from the date of injury in North Carolina. However, if the injury is discovered in a reasonable time frame after three years has passed, the plaintiff has an additional year from the date of discovery to file a lawsuit. This exception only adds one year to the original three-year timeline, meaning that after a child’s fourth birthday, the birth injury lawsuit will not be considered viable.
One crucial exception is in a case where, during a surgery required by the birth injury, a foreign object is left inside the child’s body. In these cases, the plaintiff can file in the year after the date of discovery, for up to ten years after the surgery.
Evidence Required to File
In order to prove that the case does in fact involve medical malpractice, a plaintiff in North Carolina must provide at least one medical expert to testify as a witness. This person must provide the court with a sworn affidavit stating that in their medical opinion, the birth injury could have been avoided with proper medical care. They must also be willing to testify during the trial.
In the event that the malpractice suit is being levied against an emergency room, the plaintiff must have clear and convincing evidence that negligence occurred.
Damage Caps
The damages that can be awarded to families are often very high, in order to pay for the future medical care of the child. There are three types of damages that may be awarded in a birth injury trial. These include non-economic damages, which are damages that cannot be defined by a specific dollar amount. Things like quality of life, or pain and suffering, count as non-economic damages. North Carolina capped non-economic damages at 500,000 dollars in 2011, with that number rising by a small percentage for inflation each year since 2014. The caps for non-economic damages are dismissed in cases where the child was permanently disfigured due to gross negligence.
Economic damages are those that have a dollar amount attached, such as medical costs and legal fees. North Carolina does not cap these damages, although two separate trials regarding liability and the amount of damages must be held if the damages exceed 150,000 dollars.
The third type is punitive damages, which North Carolina does not allow in birth injury lawsuits. These are awarded as a punishment measure against the defendant in some states, and are not directly related to the needs of the plaintiff.
Sources:
http://www.cerebralpalsy.org/about-cerebral-palsy/sign-and-symptoms
http://www.mydrted.com/the-characteristics-of-birth-injury-lawsuits/
http://www.alllaw.com/articles/nolo/medical-malpractice/laws-north-carolina.html